PW & Ors, R. v

A stay for abuse of process is exceptional. It requires either an impossibly unfair trial or conduct making a trial offensive to justice and propriety. A court should not use that jurisdiction to review the Crown’s ordinary assessment of proportionality or public interest.

For an offence of making an indecent photograph under section 1(1)(a) of the Protection of Children Act 1978, deliberately photographing or filming is sufficient. Knowledge that the person depicted is under 18 is not additionally required of a principal who makes the image directly. The position differs where an image is received by downloading or a comparable process.

The Crown may adapt its presentation after developments in related trials, provided the allegations remain untried and the defendant is not thereby unfairly prejudiced.

The Crown sought leave to appeal a Crown Court ruling which stayed a proposed 15-count indictment as an abuse of process. The charges alleged the making of indecent photographs of L, a child under 18, contrary to section 1(1)(a) of the Protection of Children Act 1978.

An earlier trial concerning contact sexual offences had ended with rulings that L was an unreliable witness. The Crown therefore abandoned her as a witness and proposed to rely on images recovered from mobile telephones. The trial judge held that the proposed prosecutions were abusive on grounds including mens rea, fairness in L’s absence, proportionality, and the Crown’s attempt to proceed after the earlier trial.

The central questions were whether the Court of Appeal had jurisdiction under section 58 of the Criminal Justice Act 2003, and whether any of those matters justified the stay.

1. The Crown’s appeal was allowed in part. The court reversed the stay and directed that proceedings resume against PW, PC, LD, AM, JP and MC on the identified counts. Leave was refused in relation to PQ, and BC and PQ were acquitted on counts 9 and 12 respectively.

2. The court had jurisdiction under section 58 of the Criminal Justice Act 2003. The judge had made one appealable ruling: the stay for abuse of process. Other purported rulings on joinder, amendment and the indictment had not been identified when the Crown notified its intention to appeal. An indictment electronically entered on the Crown Court digital system was valid without a signature under section 2(1) of the Administration of Justice (Miscellaneous Provisions) Act 1933.

3. A stay for abuse may be granted where a fair trial is impossible, or where trying the accused would offend justice and propriety or damage confidence in the criminal justice system. Neither category was made out. The absence of L did not make the trials unfair. The images and other evidence could establish the relevant facts, and the ordinary trial process could determine evidential sufficiency, participation, and any submission of no case to answer.

4. The judge erred on mens rea. R v Smith and Jayson [2003] 1 Cr App R 13 concerned images made by downloading or similar electronic receipt. It did not govern direct photographing or filming. Following R v DM [2011] EWCA Crim 2752, a principal who deliberately photographs or films an indecent image commits the section 1(1)(a) offence without proof that he knew the person depicted was under 18. Participation in the sexual activity shown may support an inference of participation in making the image; whether a participant was a principal or an accessory remained for trial.

5. Absent misconduct or oppression of the R v Horseferry Road Magistrates’ Court, ex p. Bennett [1994] 1 AC 42 kind, the choice to prosecute and the public-interest assessment are for the Crown. A judge is not an additional public-interest filter.

6. R v Piggott and Litwin [1999] 2 Cr App Rep 320 was distinguishable. These allegations had not been tried, and the Crown was not restarting a failed prosecution on the same adjudicated charges. It could modify its case by relying on previously served phone evidence, provided trial fairness was preserved.

• Court of Appeal (Criminal Division): In [2016] EWCA Crim 745, the court allowed the Crown’s appeal in part, reversed the abuse-of-process stay for six respondents, and ordered the relevant Crown Court proceedings to resume.

• Crown Court at Nottingham: On 26 May 2016, Her Honour Judge Coe QC stayed the proposed 15-count indictment as an abuse of process.